CHICOPEE, Mass. (WWLP)–A Massachusetts court has ordered that defendants in drunk driving convictions be notified that they can return to court and request that their conviction be overturned in the appropriate circumstances.
Twenty-seven thousand notices will be sent to individuals across the state who were prosecuted with a breath test result. In January 2019, after learning of the intentional misconduct of the Office of Alcohol Testing (OAT), the Court held that a class of breath test results should have been presumptively excluded from evidence. Continue Reading.
Not only are there inherent inaccuracies in breath testing equipment used around the country, the intentional malfeasance of the law enforcement agencies charged with properly maintaining these machines is particularly disturbing. Though the various District attorney’s offices in Massachusetts argued to preserve the results spat out by these machines, every DA’s office in the state signed-on to notifying 27,000 defendants so they can seek reversal of their convictions.
Is it possible the blood alcohol level estimated by a breath test was wrong? Of course. Here are three key factors that can compromise the results of a breath test and where calibration and maintenance is key:
1. Poor calibration
In order to give accurate results, a breathalyzer must be calibrated regularly and properly maintained. It should be periodically checked for accuracy. The officer administering the test must be certified to use the device. In addition, the test must capture at least two readings that are within .02 of one another. If any of these requirements are not met, a defense attorney may be able to argue that the breathalyzer results are inaccurate and inadmissible in court.
2. Electronic interference
Radio frequency transmissions can interfere with breathalyzers, leading to false readings. Hand-held police transmitters, police radar units, station dispatchers, teletypes and even AM and FM radios can emit electromagnetic interference that renders a device untrustworthy. Even devices equipped with an RFI (radio frequency interference) detector may be unreliable.
3. Exposure to chemicals
Breathalyzers do not actually measure the alcohol level in a person’s blood. Instead, they measure the alcohol in the air, and a formula is used to convert that reading into an estimate of the person’s blood alcohol level. However, breathalyzers cannot distinguish between alcohol and many other compounds. Individuals who work with oil-based paint, varnish, paint remover, lacquer, gasoline, celluloid, cement, cleaning fluid and other high-VOC chemicals may retain enough chemical fumes in their breath to trigger a false-positive result on a breath test.
About the Author: Licensed to practice since 1982, Jonathan Blecher has defended over 5000 DUI and suspended driver license cases. A former Assistant State Attorney under Janet Reno, Jonathan later developed his interest and skills in DUI defense working under DUI legend Richard Essen, a founding member of the National College for DUI Defense. A member of the College himself, Jonathan has lectured on DUI topics at seminars, civic and business groups, as well as at the Miami-Dade County Police academy in courtroom procedure for police cadets. Jonathan is AV-Rated by Martindale-Hubbell and is authorized to appear before the Supreme Court of the United States, the Fifth and Eleventh United States Courts of Appeal, the U.S. District Court for Southern and Middle Districts of Florida, as well as the U.S. District Court for the Eastern District of Michigan. Mr. Blecher can be reached at www.duilawdefense.com, email@example.com, and 305.321.3237.